I-751 Joint Waiver Petition - The Story Matters


As immigration attorneys we have the benefit of walking with our clients through many important stages in their lives, both professional and personal. One important stage, and very often a delicate matter, is the filing of the I-751 Petition to Remove Conditions-Joint Filing Waiver. Although most individuals picture a life in loving harmony with their soulmate, statistics show the reality may be far from blissful. When a conditional resident’s marriage has soured prior to the filing or approval of a joint petition, it is vitally important to do in-depth fact finding regarding the union and the eventual demise of the relationship. In a Joint Waiver filing, the story matters.

The Adjudicator’s Field Manual clearly states the reality of marriage: “Despite the best intentions, marriages do not always work out, and sometimes even bona fide marriages fall apart in less than two years.” Accordingly, an I-751 waiver applicant should not be penalized for the non-viability of a bona fide relationship. To protect your client from a difficult denial, the petition must provide physical evidence of the bona fide intent of the marriage. It must also include documentation relating to any other applicable reasons for waiver.

The petition must affirmatively answer the question: Did the couple intended to establish a life together at the time they were married? Yohannes v. Holder, 585 F.3d 402. Your fact gathering must delve into the conduct of the parties leading-up to the marriage, at the time of marriage (Boluk v. Holder, 642 F.3d 297 (2d Cir. 2011), and the consistency of conduct after the marriage. Have your client give a brief overview to establish a timeline of events, then delve into the full life-cycle of the relationship. It is important to make note of helpful factors in your client’s story and ask clarifying questions along the way. Be sure you understand the reasons for your client’s actions. This is vital in situations where the actions of the parties may seem strange to western practices. For example, if your client had an arranged marriage the couple may not have met until the day of their wedding, or they may have only spoken over the phone. After obtaining a thorough understanding of the circumstances of the relationship, ask for documentation regarding each applicable waiver element and give your client examples of the types of documentation that is useful.

Once you have gathered the documentation, review it against your understanding of the client’s story. Many times the evidence reveals an inconsistency in the story that the client glossed over or had forgotten. Discuss this with your client and remind them relationships are messy and the uncomfortable elements often translate into the realities of a bona fide marriage. Be ready to use these elements for depth to your client’s story. Once all inconsistencies are addressed and the documentation organized, you are ready to file.

Your I-751 petition should include all supporting documentation for each applicable reason for waiver. Separate your evidence by waiver criterion. However, consider saving your in-depth analysis of the proffered evidence for a response to a Request For Evidence (RFE) or Notice of Intent to Deny (NOID). With luck, the petition will be approved based on the documentation presented. However, if an RFE or NOID is issued, fear not, this is where all your preparation will be utilized to clearly tell your client’s story.

In your response to USCIS, address the Agency’s concerns by creating a nexus between the documentation submitted and the client’s situation. Explain the circumstances leading up to the marriage, pinpoint any cultural traditions that may seem strange to the USCIS Officer, such as the absence of a smile by the bride during the ceremony (explain how this is often done in an attempt to show respect to the birth parents when she is departing to join her husband’s family), and provide articles about the cultural issues that support your arguments. Often times, USCIS focuses on the lack of co-mingled assets and/or liabilities as an indicator of a fraudulent marriage. Remind USCIS that the regulations at 8 CFR 216.5 does not limit such documentation as the sole acceptable evidence of a bona fide relationship, but rather, lists documentation that may be included. Utilize precedents from the Board of Immigration Appeals (BIA) that supports your argument that evidence of a bona fide relationship can be quite broad, and can include testimony regarding the courtship, proof of a wedding ceremony, shared residences and shared experiences. Discuss cultural differences in your petition, explain the actions of the couple before and after the marriage- did they attempt to make the marriage work, did they move in together, did one of them leave their employment to be with the other, is there a child of the marriage, is your client participating in counseling for depression due to the breakup of the marriage, etc. Your response must address how the client’s unique circumstances coupled with the petition’s documentation show the marriage was bona fide at the time it was entered into. Remind USCIS each relationship is different and must be analyzed on a case-by-case basis and the documentation provided shows the marriage was entered into for reasons other than an immigration benefit, therefore the petition must be approved pursuant to 8 CFR §216.5 and the relevant case law.

Reprinted with permission.

About The Author

James E. McLaughlin III practices immigration law with a focus on employment and family based immigration, and naturalization at the Murthy Law Firm near Baltimore, MD.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.